Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA

KARRIE B. and CRYSTAL B.,

)

minor children, by their Guardian ad

) Supreme
Court No. S-12675

Litem, JANINE REEP,

)

) Superior Court Nos. 1JU-
02-118/119 CP

Appellants,

)

) O P I N I O
N

v.

)

) No. 6247 April 4,
2008

CATHERINE J., and STATE OF

)

ALASKA, OFFICE OF CHILDRENS

)

SERVICES,

)

)

Appellees.

)

)

Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Guy M. Kerner, Anchorage, for
Appellants. Kirsten Swanson, Juneau, for
Appellee Catherine J. Michael G. Hotchkin,
Assistant Attorney General, Anchorage, Talis
J. Colberg, Attorney General, Juneau, for
Appellee State of Alaska, Office of Childrens
Services.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
The Guardian ad Litem (GAL) for two children in need of
aid, Karrie and Crystal,1 appeals a superior court order, arguing
that the superior court erred as a matter of law in not
terminating the parental rights of their mother, Catherine.
II. FACTS
Catherine was born in 1978 in Juneau and is an Alaska
Native. Catherine met Thomas B. shortly after she graduated from
high school. Catherine and Thomas never married, but they had
two children together: Karrie, born in 1998, and Crystal, born in
2001. The troubled story of Catherine and Thomass relationship
with their children, and with the Office of Childrens Services
(OCS), was set out in detail in the July 25, 2005 permanency
report authored by the GAL2 and Court Appointed Special Assistant
(CASA) for Karrie and Crystal. The report covered the period
from 1998-2005.3
Although the Office of Childrens
Services did not assume custody of Karrie and
Crystal until 2002, OCS . . . has been
involved with the family for many
years. . . .
The first report of harm was received by
OCS when Karrie was only two months old, on
August 21, 1998. At that time, the police
had taken Catherine and Karrie to her mothers
home because of fighting in the home. Thomas
became suicidal and was subsequently
hospitalized. In November of 1998, police
again were sent to the home because of
partying. Referrals were made for the family
to . . . [a] parenting/family center and
Thomas was reportedly working with [a] Juneau
. . . [h]ospital. The OCS social worker
noted that although they were cooperative,
Catherine and Thomas also stated that they
felt they were being harassed by OCS . . . .
Problems escalated in 1999 with numerous
police contacts due to partying and drinking
at the familys apartment . . . . Three
reports of harm were made to OCS regarding
domestic violence and drinking. Thomas was
arrested and charged for assault in April of
1999 when he pushed Catherine and knocked her
to the floor during an argument at their
home. In May of 1999, Catherine stabbed
three holes in a door in their apartment with
a knife in anger while she was intoxicated.
At first, Catherine steadfastly denied these
actions, but finally admitted the truth after
an OCS social worker located the stab marks
in the door.
Catherine was arrested for assaulting
another woman in September of 1999, again in
the home. When the police arrived to arrest
Catherine they found her lying on the bed,
intoxicated, with Karrie, who was only 1 year
and 3 months old at the time. Although
Catherine was ordered to attend [counseling]
for anger management in September of 1999,
her probation was revoked in early December
of 1999 for failure to follow through.
Catherine was also arrested for driving while
intoxicated in late December of 1999.
Catherine and Thomas both agreed to work
a OCS case plan in early 2000. The family
was reportedly engaged in couples counseling
through [a] Juneau . . . [h]ospital and
Catherine was participating in counseling . .
. . However, in May of 2000, Catherine was
arrested at [a] . . . [l]ounge for
noncompliance with conditions of probation.
In June of 2000, the family was evicted from
their housing . . . .
The family moved into [a] shelter where
extensive family services and support were
put in place. However, in July of 2000,
Catherine was again arrested for non-
compliance with her court ordered counseling.
Thomas was arrested for furnishing alcohol to
minors in July of 2000.
Crystal was born [i]n . . . 2001. Less
than one month later . . . Catherine was
arrested for disorderly conduct . . . after
she spit on another woman and raised her fist
in a hostile manner. Catherine was again
arrested in October of 2001 for noncompliance
with her alcohol screening recommendations.
The family was evicted from [the shelter
where they were staying] through a court
action filed in March of 2002. Catherine and
Thomas were delinquent on their reduced rent,
visibly intoxicated on the premises in
violation of shelter rules and had refused to
comply with requests for alcohol/drug testing
and treatment or AA meeting attendance.
A police report of Catherine being
intoxicated downtown was made on May 31,
2002, and another report regarding a domestic
violence incident was received on June 28,
2002. The family was then living at [a
hotel] under stressful conditions. On August
28, 2002, the police were called by Thomas
regarding another domestic assault.
Catherine was arrested because she had become
angry with Thomas and punched him on his face
and broke his cell phone. The present case
was initiated in November of 2002 after
Juneau Police officers found one year old
Crystal and four year old Karrie unattended
in their room at the [hotel] while both
parents were out drinking. The children were
placed in emergency foster care.
Thomas failed to follow through with
most of the recommendations in his OCS case
plan. Catherine participated in the
Naltrexone program for substance abuse, and
worked with [a] therapist . . . on a weekly
basis focusing on substance abuse and
relationship issues. Finding affordable
housing was a struggle due to the familys
prior evictions due to non-payment of rent
and domestic violence and drinking.
However, unbeknownst to OCS and the
CASA/GAL, it now appears that Catherine was
still actively drinking. On August 10, 2003,
a taxi cab driver reported to the police that
Catherine and another woman did not have
money for their fare and were passed out in
the vehicle. Another police report reflects
that on September 9, 2003, Catherine and
another male were engaged in a protracted
altercation involving yelling, screaming, and
scuffling . . . .
With the help of OCS, the CASA/GAL, and
the vigorous advocacy of the girls foster
parents . . . affordable safe housing was
finally secured for Catherine . . . .
Crystal and Karrie were returned to
Catherines care in October of 2003. For a
period of approximately six months, the
household appeared to run smoothly. However,
again, unbeknownst to OCS and the CASA/GAL,
reports regarding drinking and violence were
made to the police as early as April of 2004.
On April 21, 2004, Catherine called the
police because an intoxicated Thomas had
barged into her residence, (although she had
attempted to block the door with a chair)
pushed her down and took her cell phone.
Catherine stated that both of her children
were home, but did not witness the
altercation.
Additional police reports reveal that on
May 23, 2004, Thomas called the police
because of a domestic violence incident
between he and Catherine . . . . Both
parties accused the other of causing the
problem. Catherine stated that Thomas kicked
her and pushed her down in the presence of
Karrie. (It is not clear where Crystal was
at the time). Catherine also relayed to the
police officer that she and Thomas had both
been drinking. Five year old Karrie was
interviewed by the police and confirmed that
she saw her father push her mom down and kick
her.
On August 15, 2004 a report was made to
police that the residents in Catherines
apartment fight all the time and that a
female was heard saying, get off of me. A
verbal altercation involving alcohol was
confirmed. Police records state that a copy
of the report would be sent to [the Division
of Family and Youth Services4] because
Catherines two young children were in the
residence, although this does not appear to
have happened.
On August 17, 2004, Catherine was
arrested for violently attacking Thomas.
Both parties were intoxicated and alleged
mutual combat. Catherine was placed under
arrest for domestic assault and then had to
be physically restrained on the floor of her
home because she resisted being handcuffed.
Karrie and Crystal were reportedly fast
asleep and wakened up and taken to Catherines
sisters home. OCS was not called.
In October of 2004, Crystal and Karrie
were placed in [a] . . . foster home
temporarily while Catherine was incarcerated
for her assault conviction. Thomas moved to
Oregon and Catherine struggled to care for
the children on her own. In December, it was
discovered that Catherine in anger, had
pulled Karries arm hard enough to leave a
large purple bruise and fingernail cuts.
Catherine agreed to voluntarily place Crystal
and Karrie with [a foster home] while
arrangements were made for her to enter
inpatient treatment with the children in
Sitka in January of 2005.
After Catherine returned from treatment,
concerns arose about conditions in the home
and Catherines ability to provide for the
children. Karries teacher made a report of
harm to OCS based on her observation of a
drastic negative change in Karries
personality and behavior. Karrie reported
that her mother was dragging [them] by the
hair and grabbing [them] by the arm and it
hurt[]. Catherine had stopped communicating
with the school and sending in homework for
Karrie as she had previously done, and
Karries progress in school drastically
declined.
When efforts were made to address these
concerns Catherine demonstrated paranoid,
volatile, angry behavior by yelling and using
profanity towards her OCS social worker.
Catherine also indicated that she was no
longer interested in allowing the children to
visit with [the foster family] or CASA Susan
Ashton who had all been steadfast supporters
of Catherines reunification with the children
and basically the familys safety network. In
addition Catherine stated that she no longer
wanted Karrie to work with her counselor from
AWARE, but wanted her to see a new counselor
at SEARHC [SouthEast Alaska Regional Health
Consortium]. Catherine came to an OCS
meeting sharing her plans to move down to
Oregon with the girls to be near Thomas.
When OCS social workers took steps to
investigate the report of concern, Karrie
blurted out that her mother was being mean to
them and had poured stuff in her and Crystals
hair (later described to be something like
salad dressing) and rubbed it in. Given
Karries state of fear and anxiety, Catherines
refusal to acknowledge valid concerns, her
lack of emotional control, and her refusal to
work with her identified support system, the
decision to remove Karrie and Crystal from
their mothers home was made.[5]
The September 23, 2005 permanency report by OCS noted
that Catherine had been involved in two additional alcohol-
related incidents. As for Thomas, OCS reported that he was not
in compliance with the case plan developed for him and continues
to lead a nomadic lifestyle, has not maintained contact with OCS,
and has infrequent telephone contact with his children. The
report concluded that OCS had decided to file a Petition for
Termination of Parental Rights for Thomas and Catherine and would
do so within the next two months.6
In February 2006 Catherine relocated to Kenai as part
of a treatment plan recommended both by OCS and SEARHC. Karrie
and Crystal joined her in March 2006. As part of her treatment
in Kenai, Catherine participated in a chemical dependency program
administered by the Kenaitze Indian Tribe. A report dated May
25, 2006, from the center administering the program stated that
Catherine was doing fantastic.
The expectation was that Catherine would live in Kenai
for a year. But as early as April 2006, Catherine began
inquiring about returning to Juneau.7 On July 9, 2006, Catherine
was found intoxicated and passed out at home with her children.
Karrie and Crystal were returned to Juneau on July 14, 2006,
after briefly being placed in foster care in Kenai. Catherine
returned to Juneau on August 7, 2006, and enrolled in an
inpatient program at the Rainforest Recovery Center.8 She
completed this program in early September and participated in
Rainforests ongoing care program afterwards. Catherines
substance abuse counselor at Rainforest described her prognosis
as guarded. The discharge statement from the outpatient program
stated that it seemed the client was blaming the system for her
problems and had some difficulty taking full responsibility for
her drinking and past choices.
The latest permanency report indicated that Thomas was
still not complying with his case plan and ha[d] not made OCS
aware of any active efforts to seek out services.9
III. PROCEEDINGS
A. The Termination Hearing
The termination hearing for Thomas and Catherine took
place over six days in 2007 (January 10, 11, 12, 19; March 8; and
April 3). Thomas was telephonically present for the hearing only
on March 8 and April 3; he was told that the next permanency
hearing was scheduled for October 11.10 He opposes the
termination of his parental rights, but is not a party to this
appeal and was not the subject of the courts final order. A
representative from Catherines tribe was present telephonically
at the hearing.
The hearing dealt almost entirely with Catherine and
her behavior and the well-being of Karrie and Crystal. Although
several witnesses and experts testified that there was a strong
bond between Catherine and her children, they also testified that
Catherine consistently exhibited bad judgment and repeatedly
placed her own needs before the needs of her children. Katheryne
Calloway, who worked with Catherine and her children at OCS,
stated, I believe that [Catherine] tries. I believe she loves
her children. She wants to parent her children . . . . [But] I
think that there are certainly limitations in her capacity to
develop the skills necessary to do that consistently.
One theme repeatedly pressed by the State and the GAL
was that Catherine was prone to cycles, where she would show
signs of improvement, yet then slip back to her old behavior.
Julie Harbers, who worked on Catherines case at OCS from February
2005 to July 2006, remarked that Catherine was able to make short-
term commitments . . . [and was] very, very proactive in the
beginning but was not able to sustain . . . that positive drive
to continue to be clean and sober and follow the advice of
providers. A particular focus of the hearing was on Catherines
time in Kenai and her return to Juneau. The State and the GAL
portrayed this as further evidence of Catherines cycle of
apparent improvement and then devastating relapse despite the
best efforts of OCS and related service providers. Catherine and
her counsel argued that the move to Kenai was a poorly planned
attempt to help Catherine, which took her away from her cultural
and social support network and set her up for failure.
There was also extensive testimony about Karrie and
Crystals anxiety and depression. A mental health expert
testified that Karries concerns about maternal deprivation and
safety . . . . [were] taking up so much psychic energy and
emotional energy that her attention and concentration in other
areas could be easily disrupted. A therapist for the children
testified that when the girls were with Catherine there was a
deterioration of their behavior but when they were in foster care
in a structured, stable environment, they did better. A social
worker testified that she saw yearly patterns of repeated
behavior in Karrie and Crystal and that she was concerned that
[Karrie] is self-harming . . . [and] concerned that [Crystal] is
running out into the street and hitting and biting and spitting.
Catherine testified on her own behalf at the hearing, expressing
that she would like to see that [her children] have a loving,
caring parent, something that is healthy, and not have any of
these issues be addressed to [her] children again, the domestic
violence, the alcohol abuse thats been in their lives.
It became evident during the hearing that there was no
clear long-term placement plan for the children if Thomass and
(especially) Catherines parental rights were terminated. There
were discussions at the hearing about awarding guardianship to
Catherines sister and her brother-in-law, with whom Karrie and
Crystal briefly resided. But by February 28, 2007, that
placement had failed,11 and the children were transferred to a
foster family with whom they previously had stayed. The foster
parents later indicated that they could not keep Catherines
children long-term. On the final day of the hearing it was
suggested that possibly a permanent placement could be made with
a school teacher of Karries.
B. The Courts Remarks at the Hearing and Its Final Order
At the hearing, Superior Court Judge Patricia R.
Collins expressed her belief that the case was a difficult one to
decide. I have a hard decision to make, she said on January 19,
2007, and also: [S]eldom have I had a case that really was so
difficult. The court stated that the State has met its burden on
virtually every element that must be proved to terminate the
legal power of a parent to act, in other words what we call
parental rights. The court said that the children deserved
stability in their lives and to know that their parent would be
sober and stable. The court also observed that the children were
children in need of aid and that Catherine had committed acts of
assaultive behavior toward the children and . . . threatened them
with bad things if they related that to others. The court opined
that Catherines behavior showed disturbing patterns, especially
with regard to anger and alcoholism, and viewed the Kenai episode
(Catherine going and then wanting to return to Juneau) as part of
a pattern of Catherine being unable or unwilling to put her
childrens needs before her own. At the same time, the court
stated that it was clear that [t]hese children love [Catherine],
she loves them, and shes always going to be their parent. On
January 19 the court decided to wait forty-five days before
making its final order.
On March 8, 2007, the court again emphasized how close
a question . . . this case presents. Given how incredibly close
the question was, the court issued a qualified denial of the
States petition to terminate Catherines parental rights, adopting
what it referred to as the recommendation by the tribe, which was
denying the petition to terminate but leaving the State to
reapply basically any time after July. The court elaborated that
its position allowed the State to petition for termination should
any circumstances arise that would suggest a continued pattern,
such as the one that has existed for many years of actions by the
mother that led to instability for the children. The court added
that if the State filed another petition for termination, the
court would not expect the state to start from ground zero.
This position found expression in the final order
issued by the court on April 2, 2007. The court found that
Catherine had failed, within a reasonable time, to remedy the
conduct that placed her children at risk and that returning the
children to her care would place the children at substantial risk
of physical or mental injury. The court further found that
efforts had been made to enable the children to return home
safely but that those efforts had failed. The courts final
finding was that there was evidence beyond a reasonable doubt
that return of the children to the parents custody is likely to
result in serious emotional and/or physical damage to them. The
order spared few words in expressing the courts grave
reservations about Catherines problems with anger and drinking,
and its concern that Catherines children are already showing
signs of problems similar to those suffered by Catherine.
But the court wrote in its legal conclusions that [t]he
state ha[d] met its burden of proof with respect to termination
of parental rights in every respect except whether it is in the
childrens best interests to terminate [Catherines] parental
rights at this point. (Emphasis added.) The court gave its
reasons for its decision to deny/delay decision on termination
(emphasis added) as follows:
(1) [T]he children are bonded to their mother
and want to be with her; (2) the children
are/were living with their maternal aunt . .
. at the time of hearing and determination of
the appropriateness of this placement as a
potential long-term placement is premature;
(3) [Catherine] has (apparently) been sober
for more than six months and at least
expresses determination to make the changes
necessary to effectively parent her children;
(4) the Tribe has asked the court to delay
decision for six months to essentially see if
[Catherine] can demonstrate sobriety for a
full year and will participate in the
programs necessary to address her anger
issues and parenting skills; (5) while the
children need stability, termination of
parental rights does not guarantee the
children stability no long-term
placement/potential adoption options are
clearly apparent at this point and the
childrens closest ties appear to be with
their mother and maternal relatives; former
long-term foster care providers for the
children have indicated they cannot be
considered for a permanent placement.
Immediately after this, the order added that the State
may reapply for termination after six months from the hearing
date. The order did not discuss terminating the parental rights
of Thomas, and he is not a party to this appeal.
The GAL appeals from the April 2, 2007 order.
The State of Alaska, Office of Childrens Services also
challenges the decision not to terminate the parental rights of
Catherine. However, the State enters this case not as an
appellant but as an appellee. The State could have entered this
case as an appellant12 but failed to do so. As an appellee, the
State may support the points on appeal argued by the GAL. But
the State attempts to do more. It advances arguments attacking
the judgment that are not presented by the GAL. This it may not
do.13 Catherine, rightly, does not reply to the States brief.
Likewise, we do not consider the States arguments that do not
address points on appeal argued by the GAL.
IV. STANDARD OF REVIEW
In child-in-need-of-aid (CINA) cases, we affirm the
findings of the trial court unless they are clearly erroneous.14
Whether the courts findings comport with the Indian Child Welfare
Act or with CINA statutes is a question of law that we review de
novo.15 We also bear in mind at all times that terminating
parental rights is a drastic measure. 16
V. DISCUSSION
The GAL does not attack as clearly erroneous as a
matter of fact the superior courts conclusion that the State had
not met its burden of proof with respect to whether it is in the
childrens best interests to terminate their mothers parental
rights. Instead, the GAL points to three specific claimed errors
of law that underlie the courts conclusion. In the paragraphs
that follow we discuss these claims in the order that they are
presented.
In her brief, Catherine argues that this appeal is moot
since the State will go forward on October 10, 2007 and request
termination of parental rights. The State has filed a renewed
petition for the termination of parental rights, and a hearing
has been scheduled for April 24, 2008.17
According to AS 47.10.088(k), the court shall issue an
order on the petition to terminate within 90 days after the last
day of the trial on the petition to terminate parental rights.
In compliance with this subsection, Judge Collinss order
unambiguously ORDERED that the petition to terminate parental
rights and responsibilities of [Catherine] is denied.
Accordingly, the order was a final, appealable order under CINA
Rule 21(a) and Appellate Rule 218. The GAL is correct that the
appeal is not moot because the order has not been supplanted by
subsequent proceedings and whether it will be is uncertain.
A. The Superior Court Did Not Err as a Matter of Law in
Considering the Lack of Adoptive Placement Options as
Part of Its Analysis of the Best Interests of the
Children.
The GAL first argues that the superior court made an
error of law by considering the fact that OCS lacked an adoptive
placement in making its decision not to deny termination of
Catherines rights. The court made two points in relation to
permanent placement for Karrie and Crystal: first, that it would
be premature to decide whether placement with Catherines sister
would be appropriate for the children, and second, that the
childrens stability would not be assured by terminating
Catherines parental rights because no long-term
placement/potential adoption options are clearly apparent at this
point.
The GAL cites Carl N. v. State, Department of Health &
Social Services18 in support of her claim that it was an error of
law to consider placement options as part of the childrens best
interests. But Carl N. at best provides weak support for this
claim. In Carl N., the father argued that termination of his
rights was not in the childs best interests because termination
would not lead to a permanent placement for the child.19 We
rejected his argument and affirmed the termination of his
parental rights. But we credited the fact that the foster parent
for the child was committed to caring for [the] child until he
turned eighteen.20 Thus, the court in Carl N. did look at
placement options for the child, albeit not permanent placement.
Relatedly, we have held that the fact that a child has bonded
with her foster parent can be a factor in considering whether it
is in the childs best interests to terminate a parents rights.21
Thus, a court may consider favorable present placements as a
factor in a best interests analysis. It follows that a court can
also consider the fact that there are no favorable permanent
placement options for a child (as in this case) as a factor in
determining whether terminating a parents rights would be in a
childs best interests. The GALs use of Carl N. is unpersuasive.
Somewhat more on point is S.H. v. State, Department of
Health & Social Services,22 also cited by the GAL. In S.H., the
father argued that it was extremely unlikely that one of his
children would find adoptive placement because of the childs
severe behavioral problems.23 We affirmed the termination of the
fathers parental rights in spite of the conceded difficulty in
finding permanent placement for the child and the need for [his]
children to be placed immediately in a permanent stable home.24
But the fact that a lack of permanent placement options did not
prevent the termination of the fathers rights in S.H. does not
support the proposition that, as a matter of law, lack of
permanent placement can never be a factor in deciding whether
termination would be in the childs best interests. At most, S.H.
suggests that lack of permanent placement will not necessarily be
a decisive factor in deciding whether to terminate parental
rights not that it can never be a consideration.
There is thus no basis for holding that the superior
court erred in considering in part the absence of favorable long-
term placement options when it reached its conclusion concerning
the childrens best interests.
B. The Superior Court Did Not Err as a Matter of Law in
Considering the Mothers Determination To Change as Part
of Its Analysis of the Best Interests of the Children.
The GALs second argument is that it was an error of law
on the part of the Superior Court to rule that it was not in the
best interests of Karrie and Crystal to terminate their mothers
parental rights due to the expressed determination of Catherine
to change her behaviors. This is on its face a puzzling claim.
The superior court in issuing its final order stated that
Catherine has (apparently) been sober for more than six months
and at least expresses determination to make the changes
necessary to effectively parent her children. The court also
held out the hope that Catherine might be able to demonstrate
sobriety for a full year and would participate in the programs
necessary to address her anger issues and parenting skills. In
considering the best interests of a child in non-CINA cases, the
legislature has directed courts to consider the capability and
desire of each parent to meet the childs needs.25 Certainly,
Catherines ability to stay sober and her determination to remain
sober were relevant factors to consider as part of the childrens
best interests under AS 47.10.088(c).
The GALs argument seems to be that because the amount
of effort by the parent to remedy the conduct is a best interests
factor under AS 47.10.088(b)(2),26 then as a matter of law the
court could not consider Catherines determination to make the
changes necessary to parent her children under the best interests
analysis of AS 47.10.088(c). But AS 47.10.088(c) is more
capacious than AS 47.10.088(b)(2). Alaska Statute
47.10.088(b)(2) only requires a court to consider whether the
parent has failed to remedy, in a reasonable time, the conditions
that have placed her child at substantial risk of harm. It does
not require a comprehensive judgment as to whether the childs
best interests favor the termination of parental rights, as AS
47.10.088(c) does.
It is true that when a court finds that a parent has
not remedied her poor behavior in a reasonable time under AS
47.10.088(b)(2), it also may readily find that termination of
parental rights is in the childrens best interests under AS
47.10.088(c).27 But if finding that a parent has not remedied the
conditions that put her child at risk within a reasonable time
meant that it was always in the childs best interest to terminate
parental rights, then subsection (c) of the statute would be
redundant, because the best interests of the child already would
have been settled by the analysis of AS 47.10.088(a) and (b).
Intuitively, and as set forth by statute28 and by our case law,29
factors such as the mothers determination to change and her
capability to do so are relevant to what is in the best interests
of the child. We conclude that the superior court did not err as
a matter of law in considering these factors in making its
decision.
C. The Superior Court Did Not Err as a Matter of Law in
Considering the Mother-Child Bond as Part of Its
Analysis of the Best Interests of the Children.
An important reason for the courts decision to deny the
petition to terminate Catherines parental rights was that the
children are bonded to their mother and want to be with her. The
GALs opening brief argues that Karries and Crystals adoptions
could be open, meaning that Catherine would still be involved
with the children even if her parental rights were terminated.
It also notes the possibility of a tribal adoption, which would
also be open. Failing that, the GAL states that under AS
47.10.089(h) Catherine can petition the court for redress prior
to adoption of the children.30 Catherine replies that these
options make the likelihood of a continued involvement between
[her] and her children after termination slim at best. Catherine
also argues that considering the bond existing between parent and
child is appropriate in determining the best interests of the
child.
Catherines argument is plainly correct on this point
and the GALs argument that the bond between parent and child may
not be permissibly considered because some level of continuing
contact is possible after termination lacks merit.31
VI. CONCLUSION
For these reasons, we AFFIRM the judgment of the
superior court.
_______________________________
1 Pseudonyms are used throughout the opinion to protect
the privacy of the parties.
2 The GAL listed as the co-author of the report is also
the one who appeals in this case, Janine Reep.
3 The report did not use pseudonyms; all proper names
have been replaced with pseudonyms in this reproduction of the
report.
4 Now the Office of Childrens Services.
5 The superior court judge gave a summary of these facts
that is substantially similar.
6 The July 25, 2005 report recommended that a petition
for termination of parental rights . . . should be pursued so
that Karrie and Crystal could be freed for adoption. OCS first
recommended adoption over reunification in a June 13, 2005
report.
7 Testimony from an employee at the treatment center in
Kenai indicated that Catherine was having trouble adjusting being
away from her community and culture and had difficulty finding
transportation and daycare for her children.
8 This appears to have been with the consent of the
treatment center in Kenai.
9 At the termination hearing on January 10, 2007, the
court stated that Thomas
has essentially dropped from sight since at
least, as best as I can recall, 2004 and has
had . . . to my knowledge, little, if any,
contact with the children or the childrens
mother since some time in late 2004 and has
not provided for them . . . in any meaningful
way for far more than a year.
None of the parties took issue with this summary.
10 It later was continued to November 19, 2007, and
findings and an order were issued on January 16, 2008. In re
K.B. & C.B., Nos. 1JU-02-118A CP, 1JU-02-119A CP, at 1 (Alaska
Super., January 16, 2008) (Amended Findings and Order on
Extension of Custody and Permanency).
11 According to the hearing transcript, there had been
either a domestic violence incident or a mere verbal disagreement
(according to Catherines attorney) in Catherines sisters
household. Catherines sister and her brother-in-law no longer
were living together.
12 The State was a party in the case below. See Alaska R.
App. P. 204(g) (All parties to the trial court proceeding when
the final order or judgment was entered are parties to the
appeal. A party who files a notice of appeal . . . is an
appellant under these rules. All other parties are deemed to be
appellees, regardless of their status in the trial court.).
13 Alaska Brick Co. v. McCoy, 400 P.2d 454, 457 (Alaska
1965) ([O]rderly procedure will not permit an appellee to attack
a judgment for the first time in his brief in the appellants
appeal.).
14 Carl N. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004) (quoting
Brynna B. v. State, Dept of Health & Soc. Servs., Div. of Family
& Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).
15 Id.
16 Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003) (quoting
R.J.M. v. State, Dept of Health & Soc. Servs., 946 P.2d 855, 861
(Alaska 1997)).
17 In re K.B. & C.B., Nos. 1JU-02-118A CP, 1JU-02-119A CP,
at 4 (Alaska Super., January 16, 2008) (Amended Findings and
Order on Extension of Custody and Permanency) (The continued
termination trial to address the best interest of the children is
scheduled for two days beginning April 24, 2008 at 9:00.).
18 102 P.3d 932 (Alaska 2004).
19 Id. at 937.
20 Id.
21 See M.W. v. State, Dept of Health & Soc. Servs., 20
P.3d 1141, 1147 (Alaska 2001) (Moreover, the state correctly
points out evidence indicating that it is in [the childs] best
interests to remain with her foster family because she had bonded
to them.); see also A.H. v. State, Dept of Health & Soc. Servs.,
10 P.3d 1156, 1166 (Alaska 2000) (Given the significant needs of
the children, their attachment to their foster mother, and A.H.s
failure to improve his behavior, substantial evidence exists to
support the superior courts best interests finding.).
22 42 P.3d 1119 (Alaska 2002).
23 Id. at 1124-25.
24 Id. at 1125.
25 AS 25.24.150(c)(2).
26 In deciding whether a parent has failed to remedy the
conditions that put her children at substantial risk, the court
can consider any fact relating to the best interests of the child
including the amount of effort by the parent to remedy her bad
behavior. AS 47.10.088(b)(2).
27 See, e.g., Sherry R. v. State, Dept of Health & Soc.
Servs., Div. of Family & Youth Servs., 74 P.3d 896, 902-03
(Alaska 2003) (Judge Lohff found that the children were in need
of aid and that Sherry had failed, within a reasonable time, to
remedy the conduct or conditions that placed the R. children at
substantial risk of physical or mental injury. Accordingly,
Judge Lohff terminated Sherrys parental rights.); S.H., 42 P.3d
at 1126; J.H. v. State, Dept of Health & Soc. Servs., 30 P.3d 79,
87 (Alaska 2001) (The same evidence of emotional risk to [the
child] from an unstable relationship, combined with the evidence
indicating that [mother] was relapsing . . . also supported the
superior courts finding that termination of . . . parental rights
would be in [the childs] best interests.).
28 AS 25.24.150(c)(2) (in determining custody, best
interests includes capability and desire to meet childs needs).
29 The GALs brief cites several cases in which the fact
that a parent did not show progress or a determination to change
is relevant to assessing whether it would be in the childs best
interests to terminate parental rights. See, e.g., Erica A. v.
State, Dept of Health & Soc. Servs., Div. of Family & Youth
Servs., 66 P.3d 1, 8-9 (Alaska 2003) (mothers slow improvement
supports termination of parental rights); J.H., 30 P.3d at 87
(mothers relapse supports judgment that termination of mothers
rights would be in childs best interests). It follows from these
cases that signs indicating improvement would be germane to a
decision that it was in the childs best interests not to
terminate parental rights.
30 This seems to be an incorrect reading of AS
47.10.089(h), which applies only when a parent has voluntarily
relinquished her parental rights.
31 See AS 25.24.150(c)(4) (love and affection existing
between child and parent relevant to best interests analysis);
see, e.g., Pinneo v. Pinneo, 835 P.2d 1233, 1238 n.12 (Alaska
1992) (affirming decision awarding custody to father because the
superior court found it in the best interests of the children
that the bonds of love and affection between [the children] and
their father not only be preserved, but that they be rebuilt).
The GALs reply brief asserts that preserving the bond
between Catherine and her children will cause them emotional and
mental harm. It concludes that the bond between mother and
children standing alone does not overcome the multiple treatment
attempts of the mother that all failed in dramatic and heart-
breaking ways. The claim in the GALs reply brief thus seems to
be that the factual finding regarding the best interests of
Karrie and Crystal is a clearly erroneous finding of fact and not
just premised on a legal error. This is a new argument that we
will not consider because new arguments presented for the first
time in reply briefs are considered waived. Danco Exploration,
Inc. v. State, Dept of Natural Res., 924 P.2d 432, 435 n.1
(Alaska 1996).